Slashdot videos: Now with more Slashdot!

View

Discuss

Share

We've improved Slashdot's video section; now you can view our video interviews, product close-ups and site visits with all the usual Slashdot options to comment, share, etc. No more walled garden! It's a work in progress -- we hope you'll check it out (Learn more about the recent updates).

An anonymous reader writes "Mitt Romney's campaign is airing an ad that is basically 30 seconds lifted from an NBC News broadcast and NBC is trying to stop them from using the ad. I found it interesting that the Romney campaign is invoking fair use to defend the ad. Romney adviser Eric Fehrnstrom said 'we believe it falls within fair use. We didn't take the entire broadcast; we just took the first 30 seconds.'"

Freedoms come in levels.Your innate Right to exist is of a higher level than someone else's assumed freedom to kill you, morally-speaking at least.That being said, if they have a gun and you don't; then you are really trusting this other person's moral compass and/or incentives.The key being that example is a direct dispute between an innate Right versus an assumed Freedom;

Innate Rights are something which no legitimate government may strip from you; in very rare circumstances Freedoms must be curtailed to protect other's Innate Rights, but these are limited in scope (i.e. you aren't allowed to experiment with radioactive isotopes in your basement or aren't supposed to yell fire in a crowded theater) by definition.

Classical liberal economists (Suggested reading being Locke, Hobbes, etc.) would argue that your freedoms extend to a certain social contract into which governance and the governed enter and wherein specific rights and/or freedoms must be protected by government - namely security, labor opportunity, and a certain amount of self governance & expression. Going even further, FDR and other 'New Deal'-era politicians wanted to re-define these contracts to include an assurance of economic opportunity - so that High School graduates could go get a job and live well enough to raise a family, College Grads would be hired into the workplace in an equivalently skilled position, and total overall productive work would continue to grow; manufacturing, innovation, resource development and nation-building. For a look at how exactly this didn't work out and some of the numbers proving it, with sources, I recommend Jacob S. Hacker & Paul Pierson's - Winner Take All Politics - How Washington Made the Rich Richer and Turned its Back on the Middle Class.

Back to your question though,

Freedoms and Rights shouldn't get confused, especially in the case of corporate entities who are virtually infinitely wealthy when those corporations claim their Assumed Freedom to limit that which is actually the Innate Right of a real person and therefore precluded from their ability to limit.

My fear is this will only worsen as technology continues to outpace the judiciary.

Sigh. Your ignorance is appalling. From that oft-quoted and much maligned source, Wikipedia:

John Locke FRS (play/ËlÉ'k/; 29 August 1632 â" 28 October 1704), widely known as the Father of Liberalism,[2][3][4] was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social contract theory. His work had a great impact u

Do our freedoms hold more weight than corporations' freedoms? Yes. The answer clearly is yes. Corporations and government are both servants of the people. You know, people -- individual specimens of Homo sapiens who exist on this planet. The only beings which actually exist. Those people.

No. The answer is clearly no. [nytimes.com] If you kill someone through your negligence, you will be imprisoned for negligent homicide, while fines for killing people is just part of a corporation's operating expense.

Corporations and government are both servants of the people.

Whatever school you are attending, I urge you to find a different one. Corporations don't serve any people except their stockholders. You serve your employer, who is likely a corporation.

That's exactly the point. These media companies have been expanding their "rights" for years while shrinking ours. If the copyright system was anything like it is now back when these companies started doing business, they would have been sued out of existence before anybody knew who they were. They want to make it big playing by one set of rules, but then change the rules to prevent others from doing the same.

1. You do not own a copyright, you merely hold it, just as you merely "hold" an apartment.

2. Don't paint everyone with the same broad brush. I hold copyrights, but I depend on fair use and the public domain, and I'm certainly not the only one. Many books and much music is licensed under the GPL (the local paper here, the SJ-R, for example, as well as Cory Doctorow's books).

This is more of the same, "Infringe on someone else's freedom to protect mine? Sounds good! Infringe on my freedom to protect someone else's? Hell no!"

The cynic in me is saying that a lot of these allegedly inalienable, fundamental rights are only the compromises of various groups trying to take away each other's rights. Group A wants to censor group B and C, B wants to censor C and D, C wants to censor all of them and D wants to censor A and B. That they come together to make something like "freedom of speech" is just a mutual defense treaty against being censored themselves, not because they're fundamentally for it. That you have something like "due pro

The sponsors of a newscast long ago are to be punished now for funding what actually was legitimate news?

If you feel that some kind of action involving sponsors is appropriate, you might have better luck telling them you use and like their product but would rather see them switch to other networks because (and tell them why in reasonable terms).Punishing them when they did nothing wrong and couldn't see what NBC (under a different ownership mix no less) might do later just isn't reasonable. If you think th

This doesn't stop them from passing laws that would make their own actions illegal...

That totally ignores the fact that when we were backing down politicians from SOPA it's mostly Republicans that responded.

Hollywood and the MPAA has a FAR greater influence over the Democrats than they do Republicans (though yes, there are also some Republicans who are bought with MPAA money too). The difference is that thanks to the Tea Party, Republicans are actually starting to be afraid of the voters. The Democrats are only afraid of Hollywood...

Vote for the future you prefer, those afraid of you or Hollywood. Over the next few years the direction you choose will be crucial.

Yes, the old "collective right" interpretation, on which the Supreme Court has spoken clearly. In every other instance where the Constitution mentions a right, it has *always* been interpreted by the Supreme Court as an individual right. Second amendment cases have in all but a couple of cases interpreted it as an individual right. Most recently, in the Heller case, which was decided 5-4 in favor of Heller, even the first paragraph of the dissenting opinion holds that the Second Amendment protects an ind

Bullshit. If you think Republicans will raise a finger to defend your rights

They are. You can plainly see it with SOPA. It's right there man.

If they Democrats controlled both house and senate still, it would be passed. That is simple fact. If you return Democrats to power in November, SOPA will be passed before the end of the year. Why do you doubt this?

If you want more corporate money in politics

Then you should also vote Democrat. They are the ones who bailed out the large banks, who threw the insur

Rights? Go look at the civil rights struggles. The Republicans were the defenders of civil rights; the Democrats were the ones trying to make black people sit in the back of the bus. You really think a Dem would call in the national guard to let a little girl go to a better school? And that difference goes back to the 1800s when the Republican Party was founded.

Now, the "Affordable Care Act" already chokes down Medicare over the next 10 years. So that's done. Hey, any Repubs vote for that one? Strike

They also have more in common with the occupy movement than anyone will admit.

To include Tea Party Republicans themselves. To be honest, I can count on one hand the number of times I've heard someone that self-characterizes as a Tea Party Republican say anything that wasn't totally negative or disparaging about either the Occupy Wall Street movement or the protesters themselves.

Hell, I remember back in early 2011 here in Madison, WI, when Governor Scott Walker went to war with the unions up here, people pretty much occupied the Wisconsin State Capitol for 2 months (over 100,000 at one point), you couldn't go more than 5 minutes without someone that called themselves a Tea Party member bitching and complaining about the people occupying the capitol, how "disgraceful it all is" and all that nonsense, how they have no right to protest. People from a movement that itself is named after one of the most famous protests in our nation's history, whining about protesters and the "legality of protesting", because, you know, sneaking aboard ships in Boston Harbor and throwing thousands of dollars worth of privately owned tea was totally legal back in those days or something....

There may be some overlap (and by all rights, there should be a lot more) but for the most part, they're two completely separate movements and until both sides are willing to respect each other (doubtful) they are going to continue to oppose each other even if they agree with each other on paper. The Tea Party, for the most part, has dismissed the OWS movement as being a bunch of whiny children just looking for handouts. Go read any article covering OWS, here's one from CNN's front page right now [cnn.com], and read the comments. I'll bet you a million bucks 99.999% of the people posting those negative comments, ask them what their political affiliation is, and they'll tell you Tea Party. Try it for yourself if you doubt it...

And those words are parroted by millions of Tea Party Republicans all over the country every day.

I know there are people on both the far left and the far right spewing their hatred, but in all honesty I hear a lot more of the idiocy Rush Limbaugh and Glenn Beck like to inflict upon the world regurgitated at me than any other demagogues. Maybe it's just that the people that listen to them are more likely to comment on news articles and such and thus the results are skewed, maybe not...

Maybe that's because they were largely for it? You can't change your mind to against unless you were for it. I don't have numbers, but here's a picture with a source attached. It doesn't look all that clear to me.

What is clear is that Democrats are typically not on the censorship bandwagon that Republicans have to be to establish their evangelical bona fides and get the Good Christian vote. So Hollywood supports Demorats, California Republicans (and CA has a lot of Congress people), and people like Reagan and Arnie who have been part of the entertainment industry. That's the only reason Hollywood supports one side, and if that side fights back the support dries up.

Republicans did not flip due to support, they flipped because someone got it through their heads that they were passing a law that would really piss off a lot of their voters. Not the ones who contribute this time, but people who would go register to vote in order to save their WikiPedia so they could copy and paste college assignments.

That is my whole point. Republicans can be scared off something we do not like. Look at the magnitude of repines against SOPA, huge names and so forth - yet Democrats were not swayed out of that forbidden tree.

If you think you will get a politician who will never climb that tree you are an idiot. That is why your only REAL option is to vote in people who will listen to what you say when you yell l

Vote for the future you prefer, those afraid of you or Hollywood. Over the next few years the direction you choose will be crucial.

Oh, don't give me that. I think only changing the system or introducing a viable 3rd party is going to choose any directions here. The choice between Democrats and Republicans will roughly comes down to allowing gays to marry and whether the poor will have any social programs left at all. These are both important issues, but I so wish that my vote affected any other issues.

You are correct that Democrats, by and large, stand on the wrong side of this issue because of their allegiance with Hollywood.

You are incorrect in asserting that Republicans are afraid of the electorate because of the Tea Party. "Tea Party" is just a replacement term for "neo-con" because, after eight years of GWB, the majority of Americans finally figured out that "neo-cons" are the scum of the fucking earth.

I'll tell you what Republicans are afraid of: Black people. All those black people who rushed out to vote for Obama in '08. Those same black people who didn't vote in the congressional elections in 2010 because Obama wasn't up for reelection. Most importantly, the same black people who will make 2012 another record for voter turnout, reelecting Obama and kicking the Republicans out of congress. And the scariest thing of all for the Republicans has to be, from 2012 - 2016. If Obama can deliver better education, health care, and redistribute wealth; then all those black voters will realize the difference they've made and will likely vote in every election for the rest of their lives.

Personally, I'd rather fight the Dems on copyright issues than let the Republicans back in. It's pretty weak-sauce of the Democrats to allow Hollywood to hold this much control over them, but that doesn't SCARE me. It pisses me off. Republicans starting a war with Iran scares the shit out of me. Their economic policies scare the shit out me because I'm not rich (and even if I was, I would still be morally opposed to them). And their opposition to socialized medicine is indefensible.

"Tea Party" is just a replacement term for "neo-con" because, after eight years of GWB, the majority of Americans finally figured out that "neo-cons" are the scum of the fucking earth.

No, the Tea Party is not composed of Neocons. Neocons are a small number of former Democrats who became Republicans. The TEA Party isn't even a Republican group, per se. The concerns they have make it more likely that they will align with Republicans, but there isn't any guarantee. The only sense in which "Tea Party" is a replacement for "NeoCon" is as an object and epithet of fear and hate by leftists.

historically Hollywood gives more to the Dems. Mostly because Hollywood doesn't want future repeat of McCarthyism,

Which is funny because while McCarthy was a Republican, the people who committed the actual abuses (as opposed to just demagoguing about them) were Democrats. The House UnAmerican Activities Committee was established and controlled by Democrats.

Yes, if a broadcast network accepts advertising, they're required to sell slots to federal candidates at the lowest rate they offer to any other advertiser, and screen then based only on across-the-board neutral conditions (things like volume of the ad, presence of skimpy clothing, etc., if they apply the same rules to all ads).

I support fair use and I love that people don't need to wade through paperwork or legalize to use something in academia, analysis, or news reporting.

Fair use is supposed to cover things like media criticism, allowing the entertainment media to show clips of television shows or films and offer constructive commentary or feedback. "Two thumbs up for Tropic Thunder" or whatever. Movie and film reviews are not always protected under fair use though and there are many times that YouTube channels with film reviews are axed. The way to get around that is usually to only use clips from the freely released movie trailers. Big media love to use clips themselves but they'll hound sites or video sharing services that allow for clips coinciding with negative reviews.

Fair use is also to cover academia, using clips for education purposes. Showing someone how a movie scene is made or why this film's scene is iconic or so on. My professors didn't need to obtain a license from whatever studio to show a hundred of us Goodfellas and The Godfather in college.

Fair use is even for news reporting, if a story needs to have a clip that might be copyrighted, and it benefits the public and actively augments the news story, then invoking fair use to use a clip with copyright might be appropriate.

But claiming 'fair use' for a political advertisement? I don't think so. There is nothing academic going on here. There is nothing being analyzed for the sake of teaching. And there is no objective news reporting occurring here. This is simply a politician taking a reporter out of context to create an artificial soundbite to further his political career. It's pathetic. It is not fair use to use a news report in a political advertisement.

That being said the news media should not be surprised. Between the shows like 'Crossfire' or the O'Reilly Factor where nothing is objective at all, and newspapers endorsing presidential candidates, the news media has been directly involving themselves in politics for years by getting involved with ideological arguments and directly supporting candidates. Now the candidates have figured out that they can just bypass the media and use the reporters words, even out of context, to help them campaign.

I just can't wait until a reporter deliberately says "I support what X candidate is doing" because he has an under the table deal to be featured in a campaign. It would be easy. Get on TV, say you "want this candidate's ideas to become realized in America", and then wait until that clip is featured all over in a major campaign because of fair use. Most of these "journalists" and "reporters" care more about fame than objectivity so they'd likely welcome the attention.

This is not fair use but the media is so worthless and corrupt that it's almost impossible to care when a politician fucks them over. The media has been screwing America for the last decade with no sign of slowing down. Now if you'll excuse me I need to watch the fifth season of The Wire.

Because it's not included in a news program aired at 6:30 PM over a decade ago?

If Romney wants to say that Gingrich was found guilty of ethics violations, then Romney can get in front of a camera and say it.

He can't steal footage of Brokaw saying it and use that.

The only reason he's using the footage of Brokaw is to imply an endorsement from Brokaw. That's not legitimate. He can convey the facts without using the likeness of someone else who doesn't want to be used in that manner.

OTOH, there is that detail about Brokaw *SAYING* those things. Facts can be so inconvenient, and rebroadcasting what you said is hardly an excuse for a broadcast journalist to cry foul. It shouldn't even be considered inconvenient.
If it's copyright issues that are at stake, the court challenge should be over appropriate remuneration. What's 30 seconds of old news worth? Not very freakin' much, IMHO. The bulk of the value should have long since fallen into the public domain.

Firstly IT IS NOT STEALING (the point of debate is not about theft, it is about whether rebroadcasting the clip constitutes COPYRIGHT VIOLATION which, although illegal and wrong, is NOT THEFT).

Second, the claim of copyright infringement is very dubious at best. This is less than 30 seconds from the beginning of a considerably longer item on the evening news--originally broadcast many years ago, read by someone who has long since retired as a news anchor (though he still occasionally reports on TV). Also,

First off, "I only used X seconds" is almost never a complete argument for fair use. How much is too much? Sampling a fraction of a second of music for a new song is enough to cause a lawsuit in some cases; likewise, having a few seconds of music in the background of your unrelated YouTube clip can get it pulled. A few seconds of a copyright work in a movie can lead to a 6 figure settlement (12 Monkeys). There is a concept of the "heart of the work" in copyright law (e.g., publishing a book review of Ford's memoirs that included only a page or two of quotation was not fair use, because those pages were the most interesting part). In the case of the broadcast clip, it'd be quite easy to argue that the lead story is the heart of the work.

Second, fair use for what purpose? It's not current news, it's not parody, the work is not transformative. Maybe you could argue it was "educational," but that's a stretch, and usually only applies in an actual educational context, not in a political ad during campaign season.

Other factors... did they take only what was necessary? In this case, no... why do all the other campaign ads only need to use excerpts of broadcasts, rather than the whole thing? And, aside from copyright, Brokaw may have an argument based on personality rights, although I don't know how being a newscaster would affect that argument.

It find it ironic that despite all the Congressional rhetoric surrounding piracy and copyright infringement, these campaign folks (who are of course being advised by lawyers) simply rip off 30 seconds of copyrighted work and then cry "fair use."

Note that personally I believe this kind of use should be allowed, but from what I see of how current copyright law is actually applied in practice, it is not allowed.

It seems obvious to me. They didn't have to use NBC's content to make their point, and Mitt Romney can certainly afford to license this or similar content that would make the same point. They WANT to be sued. That makes controversy you can't get any other way and makes BIG MEDIAâ the enemy of the Romney campaign.

That's red meat to the Republican base. Also, later when negative stories about Romney inevitably hit the press, the campaign will have poisoned the well.

It find it ironic that despite all the Congressional rhetoric surrounding piracy and copyright infringement, these campaign folks (who are of course being advised by lawyers) simply rip off 30 seconds of copyrighted work and then cry "fair use."

That's not ironic. It's basically the entire point.

The people being elected to congress are not prepared to pass legislation that has actual consequences. They think they're doing the boring job of maintaining the country [wikia.com], which is why hardly anyone takes it seriously. They think it's okay to be selfish and accomplish nothing. They think that peace and prosperity will never end--or worse, they think that you have to have to be superstitious and cowardly, maintaining the previous order at any cost. The

Are you kidding? Political speech is at the *core* of First Amendment protections. If Fair Use should cover *anything*, it's political speech. Mitt Romney's a douchebag, but he's a douchebag who's right on this one (just like McCain was, in 2008).

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposesThe nature of the copyrighted workThe amoun

I think characterising anything related to politics as 'non-profit' is ludicrously ironic despite the puported purpose of representing the public good. Beyond the kickbacks (read Campaign Donations), cushy jobs with industries they regulated, and wealthy friends who appreciate their 'hard work' over the years US Senators have an average rate of return on their stock investments on 30.2% annually compared to a 17.9% market average (Representatives average 23.9%) and in fact consistently outperform corporate

Although I agree with most of your points, in this case I have to disagree. Fair use comprises these four standards:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

1- The ad is not using Brokaw's reputation to sell a candidate, rather (pun intended) it is just repeating some factual reporting he did about another candidate. And I'm pretty sure campaigns are NFP organizations. Nor does the use as far as I can tell change the tone or character of the original work.

2- The nature is news reporting, not some kind of creative work whose value might be diminished by others copying it.

3- This they might be in trouble for, as I doubt the 30 seconds versus a 30 minute program metric will apply. More likely, it will be how much of the story about Gingrich they played. If that was the whole piece, could be problematic. If it is the first 30 seconds of a 6 minute piece, it's probably OK.

4- Same as #2. Brokaw and NBC aren't diminished by simply repeating what they said on a newscast from 15 years ago. It's not like they are selling "Best of the Nighly News" DVD box sets.

"1- The ad is not using Brokaw's reputation to sell a candidate, rather (pun intended) it is just repeating some factual reporting he did about another candidate. And I'm pretty sure campaigns are NFP organizations. Nor does the use as far as I can tell change the tone or character of the original work. "

Its most certainly using Brokaw's reputation to sell. If reputation didn't matter they could use a clip of any Joe Smo. Also attacking a competing product is selling your product. If Coke put out and anti

Its most certainly using Brokaw's reputation to sell. If reputation didn't matter they could use a clip of any Joe Smo. Also attacking a competing product is selling your product. If Coke put out and anti Pepsi add, and never said coke, and ripped of someone else's material, they would be sued, just like the Super PAC will get sued.

There is no selling. Romney's name is never mentioned until the mandated bit at the end. NBC and Brokaw have no commercial interest in the quoted material. It seems to me that fair use is corrupted by the concept that a report that is used in a context that the creator didn't intend represents a violation.

There's no context cutting here. No expansion upon the message. This is simply a "Hey, remember this..." ad.

His defense claims fair use. But what about Brokaw's right to protect his public image? Especially since he has gone out of his way to remain neutral in politics?

NBC might be unable to pull the ad due to equal airtime requirements, or may be enjoying payment as long as other networks are doing the same. But Romney's defense don't cover the whole scenario, which may get this taken down everywhere, not just at NBC.

On your #1, Brokaw's reputation is really irrelevant to the copyright analysis. If Brokaw wants to do some sort of right-of-publicity claim, he can always try that, but it doesn't have anything to do with whether the use was fair.

In this case, the real point of factor #1 is that this is political speech, which is something that the government has always been leery about limiting since it's at the core of the purpose of the 1st amendment. Fair use has always been a vehicle for balancing the two concerns.

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Well, it seems to me that it would be an easy argument to make that a political ad is for "nonprofit educational purposes". It, also, seems to me that this ad would be unlikely to negatively effect the potential market or value of this copyrighted work. I do not see how you can say that this does not fall under fair use from that definition. No where does the statute say that educational use only counts formal education.

Most of these "journalists" and "reporters" care more about fame than objectivity so they'd likely welcome the attention.

Personally, I'd go a lot farther: few if any "journalists" or "reporters" give a damn about objectivity or make the slightest attempt to be neutral. Almost all of them think they have a God Given Right to slant the news to fit whatever adjenda tehy happen to have at the moment. In fact, I'd bet that over 90% of them would be surprised to find out that there was a time when they were e

Sure you could. And expect a lawsuit. Most likely, 30s will cover enough of the song that you could just copy, paste, and have almost the whole thing. And 30 seconds of a 4.5 minute song is a much larger percentage of a 22.5 minute broadcast (if it was the 30-minute nightly news).

From now on, all my mp3's will only have 99% of the song. Sure, I may miss the end of the song now and again for certain ballads I enjoy, but I can always claim that I never lifted ALL of the song. Just a part of it.

Here's the best part about it. NBC is whining like a baby over it. But, where are the ads airing? NBC!!! They could simply stop running them if they wanted, but as long as the checks keep coming, they'll keep running them.

They would have to drop all their political ads if they drop Romney's. While I'm sure they can afford to do that, it certainly isn't in their best interest. In all likelihood Romney knew he would get sued for this, as other posters have mentioned. It's a brilliant strategy: It creates a lot of noise, it pits Romney vs. the media (an area where Gingrich has been winning by chewing out debate moderators), and the ad itself is very effective by reminding the public about what a hypocritical scoundrel Gingrich

I once had a candidate (for Mayor of Baltimore) lift an op-ed piece I'd written for the Baltimore Sun and use it, full-length, as a campaign flyer without asking permissions I billed her. And after a little screaming, she paid -- once she realized that I was a freelancer and had sold *only* first publication rights to the Sun.

But unfortunately the legislature and the courts have not given us any clear description on what is and is not fair use. The only way to find out is to take a case to the courts and have a judge evaluate the evidence and issue a ruling.

So Romley needs to do exactly that... have his ad pulled by a DMCA takedown. Appeal that. Have NBC sue (and get an injuction to stop him using this video until the case is resolved). Go to court. All this could easily be resolved by mid-2013 (unless the loser appeals to preg

Back in 2006 a democratic candidate ran a similar ad, using a 24 second clip of Fox News anchor Chris Wallace to attack her opponent by showing Wallace questioned his ethics. Fox sued the candidate in 2011, but eventually gave up: http://www.firedupmissouri.com/content/fox-backs-down [firedupmissouri.com]

My principal from 45 years ago is not only still alive, he's one of 500+ members of the Facebook group for my elementary school. Not only was he principled, but he was (and presumably still is) a helluva nice guy.

The character of the use (as in the distinction between unmodified copying and preparation of derived works) is one of the factors which a judge weighs in determining whether something is fair use, but it's not the only one -- and by no means whatsoever are derived works guaranteed to be fair use. It's a fuzzy line, not a solid definition with clear boundaries.

Completely unmodified reuse, but of a short clip only, with zero diminution in commercial value, for educational purposes only, of a work of historic nature (yes, "nature of the copied work" is one of the factors)? Certainly, a reasonable judge could find it to be fair use.

It is a fuzzy line, but the ruling could just as easily swing the other way. Why? The use is not tranformative, it is for political gain, not "educational purposes", The clip itself is likely the meat of the story (otherwise it would not be useful), and it is used as the entire ad, not just a short clip within the ad. IMHO, it is clearly a copyright violation, and not fair use.